Good morning! It’s Friday, June 30, 2023. I was at the Supreme Court on Thursday as the justices issued their historic ruling on affirmative action.
Three justices spoke about the case, reading aloud from their opinions. But, at times — as I’ll note — the justices’ words diverged notably from the opinions and dissents that were published. The below account, drawing on my written notes, will give you a rare glimpse inside the secretive Supreme Court chambers. Only 15 reporters were in the room to hear the justices, and we were not allowed to bring electronic devices. Audio of the session was not livestreamed and will not be made available until October.
When the Supreme Court ended race-based affirmative action in college admissions on Thursday, it was Chief Justice John Roberts who authored the landmark majority opinion for an ideologically divided court.
“The Harvard and UNC admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause” of the Fourteenth Amendment, Roberts wrote, referring to the two schools that sparked the dispute before the justices.
“Both programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points. We have never permitted admissions programs to work in that way, and we will not do so today.”
But, from inside the courtroom, the more striking event was an exchange that played out after Roberts read from his opinion.
Generally, when the justices hand down their rulings, only the author of the majority opinion reads their views aloud. But any justice can speak if they so choose; on Thursday, two more decided to weigh in verbally: Clarence Thomas, concurring with the decision, and Sonia Sotomayor, pointedly dissenting.
Sotomayor’s dissent was the first to be read aloud since Elena Kagan did so in a gerrymandering case in 2019. (Although it is a rare event, that is partially because the justices did not announce opinions in-person during Covid.) Reading a concurrence from the bench is even more uncommon: a veteran Supreme Court reporter could only recall two other instances of it in the past 10 years.
“Although it’s not my practice to announce my separate opinions from the bench,” the normally taciturn Thomas explained, “the race-based discrimination against Asian-Americans in these cases compels me to do so today.”
While Roberts took only a few minutes to deliver the opinion of the court, the colloquy between Thomas and Sotomayor lasted nearly a half-hour. A difference in tone was also evident: while the chief justice spoke matter-of-factly — he seemed almost bored — his more uncompromising colleagues spoke with an obvious dose of added passion.
At times, it seemed Thomas and Sotomayor weren’t just discussing affirmative action: they were hashing out even deeper questions, about the level of post-racialism in the U.S. and what we owe our ancestors.
Their sharply worded exchange launched the court into the ongoing dispute over the role of race in 21st-century America, the same debate playing out simultaneously in school boards, on the campaign trail, and across the country.
Twice in his remarks, Thomas repeated a version of the same refrain, one that curiously does not appear at all in his written concurrence that was published: “This is not the 1860s or the 1960s,” he intoned, arguing that America had moved beyond its most discriminatory periods.
Sotomayor saw the U.S. differently. “Equality is an ongoing project,” she responded, asserting that “racial inequality persists” in today’s America.
In his written concurrence, Thomas criticized Justice Ketanji Brown Jackson — who authored a separate dissent, which she did not read — for depicting a country (in his words) in which “we are all inexorably trapped in a fundamentally racist society, with the original sin of slavery and the historical subjugation of black Americans still determining our lives today.”
But from the bench, Thomas seemed to apply that criticism further, speaking as much to his colleagues as to the fights over wokeness, critical race theory, and DEI raging beyond the courtroom’s walls: “Contrary to today’s narrative,” he said in-person, the country is not so racially ossified.
Thomas and Sotomayor, who sit next to each other on the bench, bring similar backgrounds but opposing ideologies to this debate. The court’s second Black and first Hispanic jurists, respectively, they both rose from relative poverty to attend Yale Law School. They are both — by their own accounts — beneficiaries of affirmative action, the programs benefitting Black and Hispanic students that were at the heart of their Thursday exchange.
But their journeys led them to very different conclusions. According to political scientists Andrew Martin and Kevin Quinn, who calculate the index of judicial ideology known as the Martin-Quinn Score, Thomas is the court’s most conservative justice; Sotomayor is its most liberal.
Thomas views affirmative action programs as unconstitutional for their invocation of race and fundamentally unfair to Asian-Americans. “Two discriminatory wrongs cannot make a right,” he said Thursday.
Sotomayor, meanwhile, praised such programs as opening doors to “young students of every race.” She said the court’s decision overturning them would have a “devastating impact.”
In comments that seemed reminiscent of the ongoing political fight over what history should be taught in schools, Thomas and Sotomayor both expounded on the messages that should be passed down to young people about the vestiges of slavery and segregation.
“Today’s 17-year-olds, after all, did not live through the Jim Crow era, enact or enforce segregation laws, or take any action to oppress or enslave the victims of the past,” Thomas said. “Whatever their skin color, today’s youth simply are not responsible for instituting the segregation of the 20th century, and they do not shoulder the moral debts of their ancestors. Our nation should not punish today’s youth for the sins of the past.”
Sotomayor, meanwhile, argued that America is “an endemically segregated society where race has always mattered and continues to matter.” In such a society, she added, “we are all responsible as a country for the effects of discrimination,” a line she left out of her published dissent.
Thomas suggested that such a mentality, contrary to “our colorblind Constitution,” consigns minorities to “permanent victimhood” status. The justice described that philosophy as “cancerous to young minds”; when he did so, it was hard not to think of Ron DeSantis, a combatant in the parallel fight in the political arena, who frequently rails against the “woke mind virus” in his speeches.
The barbs, delivered before a hushed courtroom — with a couple dozen lawyers and spectators watching intently — appeared personal at times. Thomas drew on his experiences growing up in the Jim Crow South; a line that appears as “the segregation of the 20th century” in his written concurrence became “the segregation many of us suffered in the 20th century” when speaking in-person. (His pointed comment that “the same skin color does not mean that we think or act alike” also seemed to draw on his experiences as a Black conservative.)
Although Roberts delivered the court’s formal opinion, it was Thomas who Sotomayor more frequently referred to on the bench. (The one time she did mention Roberts, citing his ruling in a previous case, the chief justice noticeably turned to look at her, seemingly in surprise.) Thomas cites “no evidence” to claim that affirmative action hurts Asian-Americans, she alleged; he “belies reality” by equating affirmative action advocates with historical segregationists who discriminated against minorities while professing to assist them.
Thomas did not look Sotomayor’s way any of the times that she invoked him. At one point during her oration, he leaned back in his chair and stared at the ceiling, rocking back and forth.
Justice Jackson, the court’s first Black female member, also sparred with Thomas in equally harsh terms, although only on the written page. Thomas mentions Jackson’s separate dissent 18 times in his concurrence; Jackson’s opinion accuses him of an “obsession with race consciousness” in turn. Perhaps because she was recused from one of the two cases due to her role on Harvard’s board, Jackson did not read from her dissent aloud on Thursday. Instead, she stared straight ahead during the entire session, a pursed expression on her face.
There is good reason both Sotomayor and Jackson focused so heavily on Thomas. More than Roberts, an avowed moderate and institutionalist, it is often the arch-conservative Thomas who has set the pace for this latest iteration of the 6-3 Supreme Court.
As a recent Bloomberg Law article put it, Thomas has spent his 32-year career on the bench — he is the court’s most senior member — “laying down markers, spelling out his vision of the law in separate opinions.” Over time, on issues ranging from guns to abortion, those “outlier positions have slowly become the norm”; passages from his solo dissents and concurrences in past cases are now frequently lifted into majority opinions.
Even on Thursday, as he largely achieved the result on affirmative action he has long worked for, Thomas’ concurrence inched beyond Roberts’ opinion. The chief justice, writing for himself and his five fellow conservatives, did not explicitly overturn Grutter v. Bollinger, the court’s 2003 precedent upholding race-based affirmative action in college admissions.
But Thomas said he did. “The court’s opinion rightly makes clear that Grutter is, for all intents and purposes, overruled,” Thomas added, a declaration that lacks the force of law but will linger in history regardless.
Before concluding, both Thomas and Sotomayor again looked past affirmative action to make broader points about society. “The court today lives up to the promise of the Second Founding,” Thomas declared, arguing that a powerful step had been taken towards realizing Reconstruction-era ideals about America.
Sotomayor, though, painted the decision as contrary to the values of the current day. Urging colleges to continue using “all available tools to meet society’s needs for diversity in education,” the liberal justice approvingly noted that “diversity is now a fundamental American value.”
“Notwithstanding this court’s actions,” she added, “society’s progress toward equality cannot be permanently halted... The pursuit of racial diversity will go on.”
Then, she added one more rhetorical flourish, a kicker that does not appear in her dissent. “We shall overcome,” Sotomayor promised.
MORE NEWS TO KNOW
The Justice Department’s investigation into Donald Trump’s handling of classified documents has continued even after Special Counsel Jack Smith secured an indictment earlier this month. According to the New York Times, the Miami grand jury probing the case “has issued subpoenas to a handful of people” since the indictment, raising the possibility that additional criminal charges could come out of the inquiry.
Meanwhile, the Biden administration is dealing with issues around mishandling classified documents itself. Rob Malley, Biden’s special envoy to Iran, has been placed on leave and had his security clearance suspended amid an investigation into his handling of classified material, CNN reports.
In another Trump-related investigation, three investors in the blank-check vehicle that took Trump’s social media company public were arrested and charged with insider trading on Thursday. The former president was not implicated in the charges.
Finally, back to the Supreme Court. Here are a few more reads about the court’s decisions Thursday:
- “Supreme Court rules for Christian mail carrier who refused to work Sundays” (NBC)
- “‘A cautionary tale’: colleges in states with affirmative action bans report racial disparities” (The Guardian)
- “Military academies exempt from Supreme Court ruling ending affirmative action in college admissions” (Stars and Stripes)
- “Biden blasts Supreme Court as not ‘normal’ after affirmative action ruling” (Roll Call)
And here’s one more glimpse from my day at the court: Once reporters exit the courtroom, they are each handed bound booklets with the full decisions that were handed down that day. Here are Thursday’s, with the significantly thicker opinion on affirmative action on the left...
President Biden has no public events on his schedule today. This afternoon, he will travel to Camp David, the presidential retreat, where he will spend the weekend.
Vice President Harris is in New Orleans for her second day at the Essence Festival of Culture. This afternoon, as part of the festival, she will participate in a “moderated conversation on issues ranging from protecting reproductive freedom to addressing the maternal health crisis.” Afterwards, she will travel to Los Angeles, where she will spend the weekend.
The House and Senate are on recess.
The Supreme Court will release its final opinions of the term at 10 a.m. Eastern Time. Cases concerning President Biden’s student loan debt cancellation plan and the intersection of the First Amendment and LGBT rights remain to be decided.
Thanks for reading.
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